A Brief History of Treason

April 09, 2018
Jennifer Pahre from the University of Illinois College of Law

University of Illinois College of Law

In ancient England, the king and his judges decided what actions constituted treason.  This meant that decisions about treasonous behavior could be made as the crown wished.  As treason was a capital offense, perceived adversaries could be conveniently eliminated.

Then came the British Treason Act of 1351.  This Act established that it was treason to “compass or imagine the death of our Lord the King, of our Lady his Queen, or of their eldest son and heir."  This archaic terminology defined treason as killing the identified people with premeditation.  But the crown still largely controlled the process, and so people such as St. Thomas More, who refused to swear an oath of supreme loyalty to the King, could be executed.

With these missteps in mind, the drafters of the United States Constitution took special pains with the crime of treason.  The founders did not want outspoken people to suffer for their speech.  So, the framers expressly restricted the scope of treason in Article III Section 3 of the Constitution.  The first paragraph of this provision says:

“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.  No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

This paragraph defines the crime and requires a certain evidentiary showing before a conviction.  There are to be no findings of treasonous misconduct without substantial proof.

The second paragraph of Article III Section 3 has some interesting language.  It says, in part:

“No Attainder of Treason shall work Corruption of the Blood, or Forfeiture, except during the Life of the Person attainted.”

This language limits punishment for the crime of treason to those who committed the act.  Unlike in old England, neither living kinfolk nor unborn children shall suffer criminal penalties for a relative’s treasonous deeds.  This is good, because under both federal and Illinois law, the penalties for treason include death.  Treason can be terminal.

In addition to their sovereign state and the national government, there is a third governing entity for some people.  Tribal nations have parallel sovereignty within the United States, and violations of that sovereignty can also give rise to a claim of treason.  In fact, in 1992, the Tonawanda Band of Seneca convicted several tribal members of treason and banished them from the Reservation.  They had challenged the validity of the tribe’s leadership amidst claims of misuse of tribal funds and the suspension of tribal elections.  But the banishment was appealed to the federal court system, which accepted jurisdiction to review the tribe’s action.  Banishment is a severe punishment, involving a significant restraint on liberty.  And so, the court said, appropriate due process procedures must be followed before banishment can occur.

Supreme Court Justice William O. Douglas once said, “The liberties of none are safe unless the liberties of all are protected.”  No matter who you are, and no matter how severe your misconduct—up to and including treason—under the Constitution, you are entitled to due process of law.